The defendant, Mr. Abu Ali, is charged with the following offenses

113 Pages·2005·0.23 MB·English

IN THE UNITED STATES DISTRICT COURT FOR THE
EASTERN DISTRICT OF VIRGINIA
ALEXANDRIA DIVISION
UNITED STATES OF AMERICA )
)
v. ) CRIMINAL ACTION NO. 05-53 (GBL)
)
AHMED OMAR ABU ALI, )
)
Defendant. )
)
)
MEMORANDUM OPINION
THIS MATTER is before the Court on the Defendant Ahmed Omar
Abu Ali’s Motion to Suppress and Motion to Dismiss.
The defendant, Mr. Ahmed Omar Abu Ali, is charged under
various statutes that preclude a citizen from rendering, or
conspiring to render, assistance or support to a designated
foreign terrorist organization. Mr. Abu Ali is charged with
joining Al-Qaeda and participating in a plan to carry out
terrorist activities within the United States, including a
conspiracy to assassinate the President of the United States.1
1 The defendant, Mr. Abu Ali, is charged with the following
offenses: Conspiracy to Provide Material Support and Resources to
a Designated Foreign Terrorist Organization (Al-Qaeda), 18 U.S.C.
§ 2339B (Count 1); Providing Material Support and Resources to a
Designated Foreign Terrorist Organization (Al-Qaeda), 18 U.S.C. §
2339B (Count 2); Conspiracy to Provide Material Support to
Terrorists, 18 U.S.C. § 2339A (Count 3); Providing Material
Support to Terrorists, 18 U.S.C. § 2339A (Count 4); Contribution
of Services to Al-Qaeda, 50 U.S.C. § 1705(b); 31 C.F.R. § 595.204
(Count 5); Receipt of Funds and Services from Al-Qaeda, 50 U.S.C.
§ 1705(b); 31 C.F.R. § 595.204 (Count 6); Conspiracy to
Assassinate the President, 18 U.S.C. § 1751 (Count 7); Conspiracy
to Commit Aircraft Piracy, 49 U.S.C. § 46502(a)(2) (Count 8); and
Conspiracy to Destroy Aircraft, 18 U.S.C. § 32(b)(4) (Count 9).
Mr. Abu Ali was arrested on June 8, 2003, in Saudi Arabia by
the Saudi government in connection with an investigation of the
Riyadh bombings that occurred in May, 2003. In his Motion to
Suppress, Mr. Abu Ali asserts two principal arguments. First, he
alleges that he was tortured while in Saudi custody and that the
statements he allegedly made in detention are, therefore,
involuntary and must be suppressed. Second, Mr. Abu Ali contends
that the United States and the Saudi Government acted as partners
or “joint venturers” in his arrest and lengthy detention in Saudi
Arabia. He also argues that the Saudi government’s search of his
dormitory room in Medina and the search of his residence in Falls
Church, Virginia, violated his Fourth Amendment rights against
unreasonable searches and seizures. In his Motion to Dismiss,
Mr. Abu Ali contends that because his arrest and lengthy
detention were at the direction of the United States Government
using the Saudi Arabia Government as a partner, joint venturer,
or surrogate, the Indictment must be dismissed because the delay
in his prosecution violates the Speedy Trial Act and his Sixth
Amendment right to speedy trial.
The issues presented by these motions are set forth below.
The defendant’s motions are all denied because the Court, after
having heard nearly fourteen days of testimony, is persuaded that
the government has met its burden of proving that Mr. Abu Ali’s
statements were voluntary, and that the alleged defects in the
aforementioned searches and Indictment do not violate Mr. Abu
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Ali’s rights under the Fourth or Sixth Amendments.
With regard to the defendant’s Motion to Suppress, the
issues before the Court are: (1) whether any incriminating
statements allegedly made by the defendant during his time in
Saudi Arabia were made “involuntarily” as a result of “gross
abuse” and “inherently coercive conditions” and are therefore
inadmissible under the Due Process Clause of the Fifth Amendment;
(2) whether any incriminating statements allegedly made by the
defendant were obtained by U.S. and Saudi officials in a manner
that “shocks the conscience” of the Court and are therefore
inadmissible under the Due Process Clause of the Fifth Amendment;
(3) whether any incriminating statements allegedly made by the
defendant during his time in Saudi Arabia were obtained through
custodial interrogations either (a) by United States and Saudi
officials acting together in a “joint venture” or (b) by Saudi
officials acting as “agents” of the United States, and are
therefore inadmissible because the defendant was not afforded his
rights under Miranda v. Arizona, 384 U.S. 436 (1966); (4) whether
the search of the defendant’s dorm room in Medina, Saudi Arabia,
conducted by Saudi officials was unlawful because it lacked
probable cause and therefore any evidence seized in that search
should be suppressed; (5) whether the search of the defendant’s
home in Falls Church, Virginia, was authorized pursuant to
information obtained from an unlawful interrogation of the
defendant and therefore any evidence seized in that search should
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be suppressed.
The Court denies the defendant’s Motion to Suppress because
it finds: (1) that the government has demonstrated by a
“preponderance of the evidence” that any incriminating statements
allegedly made by the defendant were “voluntary” and not the
result of “gross abuse” or “inherently coercive conditions” and
therefore that the statements are admissible evidence for trial;
(2) that neither the conduct of U.S. nor Saudi law enforcement
officials in the arrest, detention, or interrogation of the
defendant “shocks the conscience” of the Court; (3) that (a) U.S.
law enforcement officials did not act in a “joint venture” with
Saudi officials in the arrest, detention, or interrogation of the
defendant and (b) Saudi law enforcement officials did not act as
agents of U.S. law enforcement officials, and therefore Miranda
warnings were not required; (4) that Saudi law enforcement
officials did not act in a “joint venture” with U.S. law
enforcement officials when conducting their search of the
defendant’s dorm room in Medina, Saudi Arabia, and therefore that
the Fourth Amendment is inapplicable to that search; (5) that
there is no evidence that the warrant underlying the search of
the defendant’s home was unlawful or lacked probable cause.
With regard to the defendant’s Motion to Dismiss, the issues
before the Court are: (1) whether the conduct of United States
and/or Saudi law enforcement officials in the detention and
interrogation of the defendant “shocks the conscience” of the
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Court in violation of the Due Process Clause of the Fifth
Amendment and thus requires the Court to divest itself of
jurisdiction and dismiss the Indictment; (2) whether the current
prosecution of the defendant, following his two-year detention in
Saudi Arabia, violates the Speedy Trial Act, 18 U.S.C. § 3161(b)
(2000), and therefore requires dismissal of the Superseding
Indictment; (3) whether the current prosecution of the defendant,
following his two-year detention in Saudi Arabia, violates the
defendant’s Sixth Amendment right to a speedy, public trial and
therefore requires dismissal of the Superseding Indictment; (4)
whether the current prosecution of the defendant is a
“presumptively vindictive response” to the habeas corpus petition
filed by his parents on July 28, 2004, and therefore violates the
defendant’s due process rights under the Fifth Amendment.
The Court denies the defendant’s Motion to Dismiss because
it finds: (1) that neither the conduct of U.S. nor Saudi law
enforcement officials in the arrest, detention, or interrogation
of the defendant “shocks the conscience” of the Court; (2) that
the government complied with the Speedy Trial Act because the
criminal Indictment against the defendant was filed prior to his
being taken into federal custody on federal charges, and
therefore was filed within thirty (30) days of his arrest on
federal charges as required by the statute; (3) that the Sixth
Amendment right to speedy trial does not attach until the
defendant has been indicted or arrested, and the defendant has
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not been prejudiced by any pretrial delay since the time of his
indictment on federal charges on February 3, 2005, and his
subsequent arrest on February 21, 2005; (4) the current
prosecution is within the prosecutorial discretion of the
government and the defendant has not advanced sufficient evidence
to establish prosecutorial vindictiveness on the part of the
government.
For the foregoing reasons, the Court denies the defendant’s
Motion to Suppress and Motion to Dismiss.
I. BACKGROUND
A. Statement of the Case
On June 8, 2003, the defendant, Mr. Ahmed Omar Abu Ali, who
is an American citizen from Falls Church, Virginia, was arrested
in Medina, Saudi Arabia, based on information obtained by Saudi
law enforcement officials that he was a suspected member of the
al-Faq’asi terrorist cell located in Saudi Arabia. The
defendant, who at the time was a student in Saudi Arabia, was
held in Medina by the Saudi national security police, known as
“the Mabahith,” for several days, and his dorm room in Medina was
searched by Saudi law enforcement officials. Following his
detention in Medina, Mr. Abu Ali was transported to a Saudi
detention facility in Riyadh, Saudi Arabia.
While at the facility in Riyadh, the defendant, upon
interrogation by Saudi officials, allegedly made a number of
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incriminating statements regarding his involvement with a number
of terrorist plots. The Mabahith agreed to a U.S. government
request to allow the Federal Bureau of Investigation (“FBI”) and
the U.S. Secret Service (“Secret Service”) to provide questions
for the defendant and to observe an interrogation of him through
a two-way mirror. On June 15, 2003, FBI officials observed the
defendant when he was interrogated yet again by Saudi law
enforcement officials and allegedly made more incriminating
statements and admissions. On July 18, 2003, the defendant
allegedly made out a handwritten confession which he was
videotaped reading on July 24, 2003.
In September 2003, the FBI interrogated the defendant
without giving him Miranda warnings. Although Mr. Abu Ali
allegedly made incriminating statements during the course of
those interrogations, the government has indicated that it does
not plan to use any statements obtained from those interrogations
in its case-in-chief.
The defendant, through his Motion to Suppress and Motion to
Dismiss, moves the Court to exclude all of the incriminating
statements allegedly made by him because he alleges, among other
things, that he was (1) tortured by Saudi officials to elicit
those statements and (2) denied his constitutional rights under
Miranda.
Among his allegations of torture, the defendant maintains
that Saudi officials: (1) “whipped” him on his back; (2) slapped
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him in the face and pulled on his beard, ears, and hair; (3)
kicked him in the stomach; (4) subjected him to sensory
deprivation by placing him in a cell that was fully and
continually lit and by interrogating him an excessive number of
times, typically beginning late at night and continuing into the
following morning; (5) chained him to the ground so that he was
forced to stay in a crouching position; and (6) chained him with
his hands above his head for a long period of time.
B. Findings of Fact and Conclusions of Law in Support of the
Court’s Rulings
In ruling upon the Motion to Suppress and the Motion to
Dismiss, the Court is called upon to review all of the evidence
presented in the case, including witness testimony, and to make
findings of fact and conclusions of law concerning a number of
issues. In this case, the Court must make a primary
determination as to whether the incriminating statements
allegedly made by the defendant were made “voluntarily” and
therefore whether those statements will be admissible evidence at
trial.
The Court makes the following findings of fact and
conclusions of law after having had an opportunity to consider
the witnesses’ testimony, consider their demeanor on the stand,
and observe the contrasts in their demeanor and the consistencies
and inconsistencies in their testimony. The Court will not
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summarize in detail all of the various witnesses’ testimony in
this Opinion. Instead, the Court will make a general review of
the facts pertinent to the Motion to Suppress and the Motion to
Dismiss.
1. The Government’s Evidence Surrounding the Defendant’s
Arrest and Detention.
Prior to the suppression hearing, the Court heard seven (7)
days of live testimony from several Saudi government officials
who were involved in the arrest and detention of Mr. Abu Ali.
The witnesses appeared via satellite realtime video and audio
transmission from Saudi Arabia to the federal courthouse in
Alexandria pursuant to Federal Rule of Criminal Procedure 15 and
a protective order. For security reasons, the witnesses were
permitted to testify under oath via pseudonyms on a split screen
television set up where they could be observed and heard by the
defendant, his counsel, and prosecutors in Alexandria, Virginia.
The court reporter in Alexandria made a realtime transcription of
the testimony. Simultaneously, defense counsel, prosecutors, and
an Arabic translator were present with the witnesses in Saudi
Arabia.
First, the Saudi government officials (hereinafter
“Government officials”) testified that two compounds in Riyadh
were bombed, killing thirty-nine (39) people, including nine (9)
Americans. The Government officials investigated this terrorist
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incident and developed a list of the nineteen (19) “most wanted”
individuals alleged to be associated with the bombing and the
terrorist group Al-Qaeda. Government officials reported that a
detained suspect whom they had questioned identified “Reda” as a
member of the Al-Qaeda cell who remained at large. This suspect
later identified a photograph of Mr. Abu Ali from a Medina
University student photo book. The suspect said that “Reda” was
a student at the Islamic University and was an American or
European citizen of Arabian background. He stated that “Reda”
was either Syrian or Jordanian.
Government officials then received an order to arrest
“Reda,” and they went to the Islamic University and met with
university officials to locate “Reda.” The Government officials’
order was to arrest “Reda” and to search him and his belongings.
Later a written order was issued. The Arresting Officer
testified that his orders did not include interrogating the
suspect. Rather, he was only to arrest, search, detain, and send
“Reda” to Riyadh for interrogation.
The Arresting Officer went to Mr. Abu Ali’s classroom after
being directed there by the school registrar. The Arresting
Officer said he did not go inside the classroom. He asked a
university official to ask Mr. Abu Ali to come outside the
classroom building. Mr. Abu Ali exited the classroom building
where seven government officers were present. The government
officers were not wearing police uniforms nor displaying weapons.
The Arresting Officer testified that he told Mr. Abu Ali that the
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